Reliability invokes a number of requirements or criteria
for determining
reliability.
(1)
Testing. Is the theory testable and has it been tested?
(2)
Peer Review. Has the theory been peer reviewed? If so, with what
results? Peer reviewing usually reduces the chances of error in the theory.
(3)
Report of Error Rate. The reliability and error rate must be reported.
One hundred percent reliability and zero error are not required.
(4)
Acceptance. What is the extent of general acceptance by the scientific
community?
Requirement 3: Reliable Application of Principle and Methods
Requirement (3), from Rule 702, says that “the witness [must have] applied the
principles and methods reliably to the facts of the case”. In other words (i) the
scientific examiner has applied the required procedures to the letter and (ii) the
procedure has not been contaminated in any way.
Requirement 4: Absence of Bias
Common law requires absence of bias in making a decision. Where parties can
seek
their own experts and shop for a hire gun to give them the opinion that
they seek, they introduce bias. A way to eliminate this source of bias in all
jurisdictions is for each court to have its own panel of experts. This becomes
an antidote to the likely subjectivity of the hired gun expert that the adversarial
system promotes.
Problems with Scientific Evidence
Introduction
Superficially, the notion that perfect science delivers perfect truth has some
merit. However, apart from the uncertainties already mentioned there are
problems. First, even if one can claim that science is inherently impartial, so
that if we knew enough or if tests are good enough science would yield perfect
results, in practice much science does not work in this way. Its techniques
stop short of objective technological conclusion and incorporate human
judgment and interpretation of the scientific evidence. Second, in practice,
science is the work of humans, and human error, accidental or intentional, is an
ever present possibility. So much is it the case that scientific evidence can fall
well short of perfect that misuse of science, by one means or another, has
been a frequent cause of major injustices.
Problems in Practice
Problems in practice with scientific evidence are severe as Dr. Tom O'Connor
asserts and illustrates:
The misuse of scientific evidence is a serious problem. Even the FBI laboratory is under
suspicion. In West Virginia, a serologist falsified test results in hundreds of cases over a ten-
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